Feess on Fees: Award Equals $779,100.34 in Fees, $11,769.20 in Expenses, and $28,776.49 in Other Costs.
We learned from an unpublished order in the next case that according to a recent American Intellectual Property Lawyers Association survey, "the average patent infringement suit with between $1 million and $25 million at stake costs $1.794 million to litigate through the end of discovery." Intamin, Ltd. v. Magnetar Technologies Corp., Case No. CV 04-0511 GAF (JWJx) (USDC, CA) (unpublished Order Re: Magnetar's Application for Reasonable Attorneys' Fees and Costs filed 12/28/2009).
In patent infringement cases, 35 U.S.C. § 285 provides for the possibility of fee shifting when the Court finds "exceptional" circumstances. In Intamin, Ltd. v. Magnetar Technologies Corp., Judge Gary Feess, United States District Court Judge for the Central District of California, granted summary judgment in favor of Magnetar, the alleged patent infringer. The grant of summary judgment was in part the result of a finding that there was no infringement, and in part "an acknowledgment of Magnetar's 'unclean hands' affirmative defense." Finding that Intamin's actions and omissions were "exceptional", the Court awarded attorneys' fees under § 285.
The opinion provides a nice summary of how to apply § 285 to determine reasonable attorney's fees and expenses. The Court reviewed survey data on hourly rates, the reasonableness of hours billed, and the application of the guideline factors cited in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975). The Court awarded nearly the full amounts requested, except for prejudgment interest. While finding misconduct in the case, the Court did not believe that it was "highly egregious conduct" that would support an award of prejudgment interest in addition to what it awarded as fees and costs.
The Court gave a nod to the experience and "high reputation" of Magnetar's patent counsel, Knobbe Martens. The Court's task was undoubtedly simplified by the fact that Intamin never submitted any opposition to the motion for attorney's fees.
Marc knows Magnetar's counsel John B. Sganga, Jr., and one of the declarants in the case, Ed Pribonic, and sends them his regards and best wishes for 2010. For them, not a bad start to the New Year.